State v. Jarrett

187 P.2d 547, 112 Utah 335, 1947 Utah LEXIS 146

• Court: Utah Supreme Court
• Decided: December 15, 1947
• Docket: No. 7066.
• Status: Published

Opinions

LATIMER, Justice.

William Stanley Jarrett, defendant herein was convicted by a jury of the crime of branding a steer belonging to Herbert H. Winn, with intent to steal the same. The statute involved in the prosecution was Section 103-34-8, U. C. A. 1943, which provides as follows:

“Every person who marks or brands, or who alters or defaces the mark or brand on any horse, mare, gelding, colt, jack, jenny, mule, bull, ox, steer, cow, calf, sheep, goat, hog, shoat or pig belonging to another, with intent thereby to steal the same, or to prevent identification thereof by the true owner, shall be punished as in cases of grand larceny.”

After the state had completed the presentation of its evidence, both parties rested, and the matter was submitted to the jury on the evidence as testified to by witness for the state.

Appellant presents and argues twelve assignments of error; however, only two are deemed of importance to a proper disposition of this appeal. The first is, did the court err in refusing to direct a verdict of “not guilty,” because of insufficiency of the evidence to justify a submission of the cause to the jury? The second is, did the court err in refusing to grant a new trial?

The first assignment of error requires a resume of at least part of the state’s evidence. Mr. Herbert H. Winn, the complaining witness, testified that he was the owner of the mother of the steer in question, and she was a “Black Bally.” The calf was born the first part of April, 1945, in his yards in Nephi, Utah. It was kept there for from two to three weeks when it was moved to his farm in the same town. It remained at the farm until late in May, 1945, when it was moved to the Uintah National Forest. Prior to the time it was placed on the reservation it was branded on the right hip with the Winn brand (an “S” with a three-quarter box over it), was tagged in the right ear with an ear tag and was castrated by the use of clamps. After being taken to the National Forest, the animal was not seen by the owner until early in October of 1945. At this time it was in a corral of the Nephi 'Cattle Association, having been rounded up with other cattle ranging on the forest land and driven to Nephi by riders of the association. Mr. Winn at this time went to the corral to identify his cattle, noticed the ear tag was missing from the calf involved, parted the hair to make sure of his brand on the right hip, and after satisfying himself of his ownership had the steer taken to his farm. In November of the same year all the calves owned by Winn were rounded up, it was discovered that he was one short, and it was determined the calf in dispute was the one that was missing. The next time the calf was seen by Mr. Winn was some seven months later, in June 1946, and it was then located on the defendant’s premises. These premises were contiguous to land owned by Winn. Both the defendant and the complaining witness Winn used a creek running through their properties to water stock, and the calf was first seen near this creek. The calf was identified as the one owned by Winn, and it bore the brand of Winn on the right hip and the brand of the defendant on the left rib. It was a common average steer in fair flesh. Both brands were visible, although the hair had grown over the Winn brand, but had not grown over the Jarrett brand. At the time the calf was discovered on the Jarrett property, the Winn brand was almost twice the size of the impression made by the branding iron used in the original branding. This was due to the growth of the calf between branding and the time of the discovery of the animal in defendant’s pasture. Upon discovering the animal, Winn contacted the sheriff who came down to the pasture and observed the calf. The animal was then caught and taken to the home of Winn and has been kept there since. In July, 1946, Winn had a conversation with the defendant in which the defendant stated in substance : That he (defendant) had talked to the sheriff about the calf; that he. could not figure out how it had happened as he never branded the steer; that he would be willing to give Winn the calf, all the winter’s feed and call it square if Winn would do that; that he did not want a report to get out; that he had leased a meadow to the Cattle Association and a bunch of strays were put in by the association before he got his cattle out; that it was possible the calf had been put in the meadow by the association; that he might have taken it with his cattle, and if so it was a mistake. Upon being told by the witness Winn that this was impossible because the calf had not been returned from the range at that time, the defendant then asserted that maybe it was one of four bulls he was keeping to have examined by a Major Henderson for breeding purposes; that he had put a brand on one of them; that he had been advised by the Major that the bulls were not too good for breeding and it would be better to clamp them and use them for next year.

Mr. Raymond A. Jackson testified to the following facts: He was deputy sheriff of Juab County. He picked up Mr. Winn in Nephi and proceeded to the old creek where Mr. Winn’s property is located. The steer was just over the fence on Mr. Jarrett’s property. As he approached the steer he noticed an open box “S” brand on the right hip. This brand was noticed by him when he was 50 steps away from the steer. When the steer was turned around, there was a spectacle brand on the left rib (Jarrett’s brand). The ears of the steer were marked by a crop and slit and an ear tag was in the right ear with the name William S. Jarrett inscribed thereon. There was a hole in the right ear that impressed him with the fact that an ear tag had been there but had fallen out. He compared the symbol on the Winn branding iron with the brand on the steer and the latter was about twice the size of the former. After having qualified as having had considerable experience in branding cattle, he described the appearance of the two brands, gave his opinion that the Winn brand had been put on first, and assigned his reasons for so concluding. He was familiar with emasculation, and in his opinion the steer was emasculated when it was around two to four months of age. He had a conversation with the defendant about the middle of July in which the defendant stated in substance: That the calf was from one of his pure bred cows; that there were about 14 calves from his cows, four of which were steers and this calf was one of the steers; that defendant asked why he, the deputy sheriff, had called him, and upon being told that it was about a steer and after the deputy had described the animal the defendant stated that he was missing that steer; that he had branded him in 1945; that after the deputy had told him he could not have put that brand on in 1945, then the defendant said it was one of the pure breds he was holding for Major Henderson to judge; that he had waited to mark the steers until after the Major had seen them and that they were inspected by the Major in the spring of 1946.

Other witnesses were called by the state and, with the exception of the conversations referred to, corroborated most of the evidence detailed above. In addition, testimony was given by them to show the characteristics of the steer, the difference between the breed of the calf and a pure bred, the time and effect of castration, the confirmation of the steer, the relative size and appearance of the brands, the detectability of the Winn brand by sight and palpation, and the relative time of branding. In all instances the witnesses claimed the Jarrett brand was placed on the steer after the Winn brand. Some witnesses testified more favorably for the defendant than did others in connection with the appearance of the Winn brand; that is, according to some, the hair had grown over the brand. However, the witnesses testified that they had no difficulty in observing the brand even though the hair had grown over.

On cross-examination the deputy sheriff testified that he was somewhat confused about the full extent of the conversation with the defendant. In addition, appellant points out minor discrepancies between the testimony given by some of the witnesses at the trial and that given at the preliminary hearing. However, these uncertainties and inconsistent statements go only to the credibility of the witnesses, and to the weight to be given to their testimony. These are properly matters for the jury’s determination, and we assume were considered by the jury during its deliberation.

The evidence is unquestionably sufficient to establish the following facts: That the steer was branded with the brands of both the defendant and the witness Winn; that the brand of Winn was first put on the steer, and that Winn was the owner of the animal. If there is any dispute in the evidence or in the inferences deducible therefrom the dispute could only be on the question of the intent to steal.

Taking into account all competent evidence, the question of intent to steal was rightly submitted to the jury. The following facts shed light on defendant’s intent. Before being arrested, the defendant told conflicting and contradictory stories to Winn and the deputy sheriff as to how the calf may have came into his possession and how it may have been branded by him with his brand. After having talked to the deputy sheriff and after having seen the animal with the brand clearly visible, his versions to Winn were in substance that he never branded the steer; that he couldn’t account for the branding, as it must have been a mistake; and that the animal might have been turned into his meadow by the Cattlemen’s Association and branded along with his other calves. When confronted with the statement that this was impossible because the calf was on the reserve, he then asserted it might have been branded by him as one of four bulls being held for inspection by Major Henderson. These were apparently branded in 1946. The inconsistency of the claim that he branded the calf as one of four pure-bred bulls in 1946 is apparent, if the jury believed the testimony of the state’s witnesses that the steer had been emasculated in May, 1945, when very young, that it was peaked and of poor quality and light of build in the hind quarters. One of defendant’s versions to the deputy sheriff was that he branded the animal in 1945. When the sheriff suggested the impossibility of this the defendant then made the claim that he branded one of the four bulls being held for Major Henderson, and “maybe this critter was the one.”

The statements made by the defendant not only appear to be inconsistent with evidence given by the state’s witnesses, but are in part inconsistent with each other. If, as he first claimed to the deputy sheriff, he branded the animal in 1945, this is inconsistent with his story to Winn that he never branded the steer. The latter statement is inconsistent with another of his versions to the sheriff that he branded one of the bulls he was holding for examination and maybe this was the one.

If the jury believed the testimony that the Winn brand on the calf was detectable by sight and palpation; that the hole for the ear tag was discernable without difficulty; that the steer had been castrated when very young; and that it was of poor quality it could reasonably find that a cattleman of defendant’s experience could not have mistakenly branded the calf believing it was one of his own.

As was said by this court in the case of State v. McNaughtan, 92 Utah 114, at page 119, 66 P. 2d 137, 139:

“We have considered all the cases'cited by defendant, and we find none where it was held insufficient to show intent to steal where there was evidence tending to show that defendant did mark as his what the jury could readily infer he must have known was not his. In State v. Chynoweth, 41 Utah 354, 126 P. 302, the calf which was branded by defendant had no marks on it. Moreover, there was evidence of statements made by and conduct of the defendant in the presence of those at the corral when he was accused of being a ‘sheep thief,’ and statements made by him to Wm. H. Siddoway, which had some tendency, taken with the remainder of the testimony, to show that he was guilty.”

We have not overlooked the evidence that might be considered by the jury as favorable to the defendant. Apparently no attempt had been made by anyone to obliterate the Winn markings; while the ear had been marked with defendant’s slit, the hole for the ear tag was still present in the ear; the animal was found in the pasture contiguous to property owned by the complaining witness after having been missed for some seven months; certain of the witnesses testified the Winn brand had been haired over; and the fences between the land of the defendant and the complaining witness were not in a good state of repair. These are all elements the jury could consider in determining appellant’s intent to steal, but when considered in connection with the other evidence were not sufficient to require the court to direct a verdict in appellant’s favor. The court did not err in submitting the case to the jury.

Appellant’s assignment of error concerning the trial court’s failure to grant a new trial raises two principles only that need be discussed. The first is that the jury received out-of-court communications referring to the cause. The second is jury separated without leave of court after retiring to deliberate upon the verdict.

The first contention can be disposed of with little comment. The affidavits filed in support of the motion for new trial and the evidence adduced at the hearing fail to establish that any communication of any kind was passed to a juror after the submission of the cause and before verdict. The affidavit by counsel for appellant alleges upon information that he believes a son of complaining witness spoke to a juror, but there is no evidence that such a conversation did take place. The most that can be claimed in support of this assignment is that it might have b'een possible for a juror to have overheard a remark about the case. The affidavits merely state that when the affiants went into the men’s rest room, certain unknown persons were there discussing the case. A juror then came in, but no affirmation is made that the discussion continued while he was present, that it was loud enough in tone to be heard by the juror, that the juror spoke to anyone in the rest room, or that anyone communicated with him. The affidavits set forth that certain people were gathered in the hall some distance east of where the bailiff sat. The subject of conversation is not mentioned, and the bailiff testified the jury could not have heard what was being said.

The last assignment claims prejudicial error because some individual jurors left the jury room. There is evidence in the record which would establish the following:

The case was submitted to the jury at 11:22‘ a. m. and the jury returned a verdict at 5:34 p. m. After having been to lunch the jury returned in a body to the court house. One juror proceeded ahead of the remaining jurors and reached the men’s lavatory ahead of the bailiff. The bailiff opened the door and observed that there were three stalls, at least two being1 occupied, one by a person not a juror, and one by the juror. Occupation of the third stall was doubtful, due to its being behind the door when opened. The bailiff stood by the door where he could both see at least part of the juor at all times and could have heard any conversation. The juror spoke to no one and no one spoke to the juror. During the afternoon there were possibly seven jurors who went to the lavatory. Three of these seven jurors went after a verdict had been reached. With the exception of the time when the one juror went into the lavatory right after lunch, there was no one in the lavatory when the jurors were permitted to go in. The bailiff stood by the door when jurors used the lavatory facilities and could see them or hear any conversation had there been any. Both the jury room and the lavatory are on the west side of the building, separated by a hallway running east and west. The doors of the jury room and the lavatory are directly opposite each other. The bailiff sat some 16 feet east of the west wall so that he blocked entrance to either place, and no one could come down the hall and enter the lavatory or jury room without passing him. The only time he left the hallway was when he reported to the judge that the jury had returned a verdict. Before doing this he locked the door to the jury room and all members of the jury were in the room.

There were some discrepancies in the testimony given by the bailiff and that contained in the affidavits, and the bailiff was uncertain about the number of jurors that used the lavatory facilities during the afternoon. However, there is no evidence in the record that any juror conversed with anyone at any time after submission of the case to the jury, and the trial court expressly found that the state had shown by direct evidence that no prejudice was committed.

No evidence having been adduced that anyone conversed with a juror during the deliberation, can prejudice be presumed because the jurors separated? Section 105-32-32, U. C. A. 1943, provides as follows:

“After hearing the charge, the jury may either decide in court or may retire for deliberation. If they do not agree without retiring, an officer must be sworn to keep them together in some private and convenient place, and not to permit any person to speak to or communicate with them, nor to do so himself, unless by order of the court, or to ask them whether they have agreed upon a verdict, and to return them into court when they have so agreed, or when ordered by the court.”

It will be observed that there are in effect two requirements: (1) That the jury be kept together in some private and convenient place; and (2) that no one be permitted to speak or communicate with the members without permission of the court. The evidence indicates there was no violation of the latter prescription, and in this respect this case is different from State v. Thorne, 39 Utah 208, 117 P. 58. In that case the juror carried on a telephone conversation with a third party and this court held that where it affirmatively appeared that a juror had wrongfully conversed with a third party the burden was on the state to show that the subject of the discusión did not prejudice the defendant. That rule can have no application here where no conversation was indulged in.

Not every separation of a juror gives rise to a claim of prejudice. Absolute isolation is not reasonably possible. When jurors are required to deliberate over long periods of time they must be permitted the liberty of visiting lavatories. Cases from most jurisdictions in this country have announced the doctrine that it is proper to permit jurors to separate from their associates to visit a lavatory if in charge of an officer to prevent their communicating with third parties. The right to separate under these conditions has been recognized. It is conversations with third parties that are condemned. While the defendant has the right to a reasonable guarantee against improper influence, he does not have the right to require unreasonable imposition on the members of the jury.

Many cases could be cited upholding this rule. We have selected two that aptly state what we believe to be the correct principle and the rule we elect to follow.

In the case of United States v. Davis, 103 F. 457, 469, the Circuit Court, Western District of Tennessee, said:

«* * * The legal right is to have a reasonable guaranty against improper influence; and the jurors may, under an officer, attend to their necessities. He need not indecently watch them., nor irksomely hamper them by disagreeable eavesdropping, when they are engaged in a presumably or apparenty harmless intercourse with those who are serving their necessities. His attendance is sufficient when it is effective to prevent opportunity for tampering with the jurors, although there may remain a possibility of furtive influence. Such a possibility it is impossible to provide against, unless a juror is confined like a felon in a cell, with a death watch set over him, and even then the possibilities are not extinct. The law requires no such strictness in any case.”

The State of Missouri in the case of State v. Dyer, 139 Mo. 197, 40 S. W. 768, 770, 34 A. L. R. 1180, announced the rule in that jurisdiction as follows, page 1180:

“No pretense is made that the juror was in a situation to be approached by anyone. To this action of the court the defendant excepted. This point is mentioned simply to reiterate that exceptions of this character meet with no favor in this court. If judgments are to be reversed for reasons like this, the administration of the law would soon become a reproach of the courts. * * * The necessary separation of a juror from his fellows to attend a call of nature, under the eye of the officer of the court, is not a separation of the jury within the meaning of that term as used by our statute. To hold that it is, would be a most unreasonable construction of the law.”

To hold that Section 105-32-32, U. C. A. 1943, prevented jurors from separation for purposes of necessity would be an unreasonable construction of the statute. The right of a defendant to have a jury secluded from outside influences while deliberating should be jealously guarded. However, this right must not be founded on an unreasonable and unwarranted construction of a statute. The statute must be construed in keeping with the correlative rights of the defendant and the jurors.

Where the only separation of the jury is for purposes of necessity, under surveillance of the bailiff, and there is no communication with any juror, prejudice will not be presumed. The facts of this case bring it under this rule, and appellant’s assignment must fail since the burden was on him to establish that he was in some manner prejudiced by the separation. The appellant not having done so, the court did not err in overruling the motion for new trial.

The judgment of conviction is affirmed.

McDONOUGH, C. J., and PRATT and WOLFE, JJ. concur.